Here’s a prediction: Seth
Williams, the district attorney of Philadelphia, will decide not to seek
to reimpose the death penalty on Mumia Abu-Jamal, the world-famous
journalist, former Black Panther and condemned prisoner who has spent
the last almost 30 years of his life on Pennsylvania’s overcrowded death
row.

The choice belongs to Williams,
now that the U.S. Supreme Court has decided, on its second time dealing
with the issue, not to overturn the decision of a three-judge panel of
the Third Circuit Court of Appeals, which had, on orders of the Supreme
Court, reheard, reconsidered and reaffirmed its earlier decision
upholding the tossing out of Abu-Jamal’s death sentence by a lower
federal district court.

For years since the dramatic
2001 decision by Federal District Judge William Yohn overturning
Abu-Jamal’s death sentence on grounds that the trial judge’s
instructions to the jury had been faulty and that the jury verdict form
was dangerously misleading, Abu-Jamal has remained in brutal solitary
confinement at SCI-Green. That’s the super-max facility that houses
Pennsylvania’s condemned prisoners, where Abu-Jamal and the others who
are actually facing death are denied any human contact either with each
other or with close relatives and friends (visits are conducted through
heavy bullet-proof plexiglass, with the inmate in chains, for no good
reason beyond simple gratuitous cruelty, since escape is impossible). He
was kept there for the last decade through the machinations of a
vindictive DA’s office, which argued that as long as the lifting of his
death sentence was on appeal, he should have to stay put as if he were
facing imminent death.

Now there is no reason or
excuse to keep him in that hell hole.

The only way he could face a
death penalty at this point would be if the DA were to order up a new
trial on the penalty phase of his case, with a new jury hearing
arguments for and against sentencing Abu-Jamal to death all over again
for the crime he was convicted of back in 1982: the shooting death of
white Philadelphia Police Officer Daniel Faulkner. (There is no easy
avenue for appeal of Abu-Jamal’s conviction at this point, as all his
habeas claims of constitutional violations and trial errors have been
rejected by the highest federal courts.)

Already, the wheels are turning
against a penalty retrial.

Mumia Abu-Jamal: 30 years on death row, never a fair trial

Maureen Faulkner, the widow of
Daniel Faulkner, who has been a tireless campaigner for Abu-Jamal’s
execution, has reportedly told a reporter from Associated Press,
following word of the Supreme Court’s decision, that she “wondered
whether it was time to end the long-running drama.” She is quoted as
saying she worries about the cost of a rehearing of the penalty issue to
the city of Philadelphia, and notes that “many of the relevant witnesses
are dead.” Plus she doesn’t want to afford Abu-Jamal any more publicity,
she says.

What she doesn’t say, but what
DA Williams surely knows, is that if there were a re-hearing of the
penalty phase of this sorry case, there is virtually no way that a
modern Philadelphia jury would vote to execute Abu-Jamal. First of all,
it would not be possible for the DA, who in any case is himself an
African-American for the first time in the city’s history, to pack the
jury with white people the way the prosecutor did in 1982 (and the way
the DA’s office routinely did in felony and especially murder trials
until 1986, when the despicable practice, tantamount to lynching, was
outlawed by the Supreme Court). Furthermore, Abu-Jamal has been a model
prisoner for 30 years, earning a Bachelor’s and a Master’s degree while
on death row, writing a number of highly-regarded books, including Live
from Death Row, exposing the horrors of a life waiting for death, and of
the nation’s whole prison industrial complex. And of course, he has
served those 30 years in prison, and still faces a future of life
without possibility of parole even if he doesn’t face execution. That is
bound to seem punishment enough to at least one juror in a panel of 12
honestly selected individuals of the city of Philadelphia, making a
unanimous death penalty sentence almost impossible to imagine.

But there is another reason I
seriously doubt Williams will not retry Abu-Jamal to get the death
penalty reimposed: the fear that such a court hearing could lead to a
new trial on the conviction itself, which was the result of a trial
process which was even more of a travesty, if that is possible, than the
portion that led to his death penalty.

This is because in a penalty
phase hearing, in order to refute prosecution claims to a jury that
Abu-Jamal didn’t just kill Officer Faulkner, but killed him in a way
that was wanton and deliberate and even pre-meditated, Abu-Jamal’s
defense attorneys would certainly bring in witnesses, some from the
original trial, and some discovered since that trial, who would raise
serious questions about the veracity of the original trial’s prosecution
witnesses. They could do this because those witnesses were used at the
trial to describe not just the supposed shooting, but the vicious manner
in which it was supposedly carried out.

Just take the matter of the
prosecution’s depiction of an “execution-style” slaying of Faulkner,
with witnesses describing Abu-Jamal standing astride the prone Faulkner,
who was supposedly lying “on his back,” and firing four shots downward
almost point blank, hitting the officer once between the eyes.

As my colleague Linn Washington
and I prove convincingly in a gun test we ran last year (see the film of
our test by scanning down to the bottom of our homepage or go to:
http://www.youtube.com/watch?v=hedfNPt6UQQ&feature=player_embedded
[1]), this story had to have been a fabrication, because three of those
shots missed Faulkner, and there is no sign of bullet impacts anywhere
in the concrete sidewalk around the bloodstained spot where Faulkner’s
body was lying. That lack of evidence would raise questions about
whether the prime witness describing that certainly brutal slaying story
could actually have seen what he said he saw.

The witness in question, a
young white taxi driver named Robert Chobert, claimed at the trial that
he had parked his taxi directly behind Faulkner’s parked squad car. The
shooting was said to have occurred on the sidewalk two cars forward of
Chobert’s taxi, meaning he would have been viewing it from his seat at
the wheel, through both the parked squad car and a parked VW Beetle
belonging to Abu-Jamal’s brother Billie Cook -- this at night and with
Faulkner’s dome lights and tail lights flashing in his eyes. But on top
of this, there is no crime scene photo showing Chobert’s taxi cab parked
behind Faulkner at all, and the likelihood is that he was not even a
witness.

It would also certainly be
presented by the defense at any penalty hearing that contrary to the
trial prosecutor’s assertion to the jury that “this man” (Chobert) had
“no reason to lie,” he actually had plenty of reason to do so. The
original jury, thanks to a biased and clearly ludicrous decision by the
trial judge, Albert Sabo, never was informed that Chobert at the time he
allegedly parked behind Faulkner’s vehicle, and at the time of the
trial, was driving on a drivers and a hack license suspended for a DWI
conviction, and that he was on probation for felony arson, for the
fire-bombing of an elementary school! Furthermore, it only became known
to the defense in 1995 that Chobert had also asked the prosecutor if he
might be able to “fix” his driver’s license problem (a request that the
prosecutor should by law have immediately made known to the defense, and
to the court, since even if he did nothing to help Chobert, it meant
that Chobert was likely to have been hoping for a reward for testifying
favorably for the prosecution).

Of course, this is only one
example of the peril posed to the state’s case against Abu-Jamal by any
public rehearing on his death penalty. There are many, many more such
perils, too.

While on the one hand, it is
surely a relief that this atrocity of a case will almost certainly not
result in Abu-Jamal’s execution, thanks to the Supreme Court’s decision
to stay out of it, in a perverse way it is unfortunate. This is because
once Abu-Jamal is sentenced to life without parole rather than to death,
and is transferred to a general prison population, where he will have
freer access to his loved ones and to the public, as well as to the
state’s huge prison population, the national and global movement to free
him will likely weaken, for he will no longer be the icon of the
anti-death penalty movement that he has been.

He will of course be able to
combat this thanks to his journalistic skills, which will be easier to
apply once he’s sprung from SCI-Green and has at least occasional access
to a computer and to a library. But let’s face it: remaining a leading
symbol of the nation’s death penalty madness will be harder once the
threat of execution is finally lifted.

This means that those of us who
believe that Abu-Jamal’s original trial was a scandal of the worse
proportions, and that his guilt was never proven thanks to the epic
misconduct by the prosecution, the lying by prosecution witnesses, the
clear pro-prosecution bias of the judge, the ineptness of the defense
attorney, the packing of the jury, the lack of funding for any defense
experts, and myriad other flaws, will have to work all the harder at
trying to win this long-suffering victim of the American injustice
system a new trial, not on the penalty, but on his original conviction.